The following terms, as used in this article, have the following
meanings unless the context requires otherwise:
includes an omission or failure to act.
means the expenses of administering the program, to the extent
designated as such by the Claims Board, including (but not limited
to) the following:
Any expenses incurred by the City in the course of any financing
undertaken to provide funding for the risk management fund or to repay
any obligation incurred by the City in the course of such financing;
or
The cost of program insurance (including any compensation paid
to brokers) that is purchased in accordance with the article.
means injury to a claimant that arises during the course
of the City’s promotional activities, if such injury arises
out of libel, slander, defamation, violation of right of privacy,
piracy, unfair competition, or infringement of copyright, title or
slogan.
means the risks of liability that the City has assumed due
to the risk of liabilities, losses, and expenses of, and possible
claims against, its elected officials, appointed officials, employees
and certain volunteers when and while acting in the ordinary course
of their duties, powers and functions.
means coverage for liability, including bodily injury and
property damage, to others caused by a City vehicle (automobile, truck,
or construction equipment).
means any physical harm or physical illness sustained by
any individual including a resulting death.
means the City of Garland.
means a vehicle or any mobile equipment leased or owned by
the City.
means any demand by an individual or corporation to recover
for loss regardless of whether any damages resulting from such loss
are permitted under the program article to be paid from the fund.
means a City staff person with the appropriate Texas Claims
License or a licensed third-party claims adjusting firm.
means the administrators of the City’s self-insurance
program as outlined in this article.
means the corporate risks and the assumed risks.
means risks of tort liability, and worker’s compensation
liability for which the City may, under law, be held liable while
the City, as a municipal corporation and corporate entity, is performing
its governmental or proprietary functions.
means any act of a plan member that:
means compensatory damages, punitive damages, special damages,
or any classification of damages that lawfully may be awarded against
the City or a plan member as a result of a claim.
means any act of a plan member that results in or constitutes
an erroneous or improper discharge of such plan member’s official
duties for the City (including the making of an incorrect statement),
but that does not constitute legally actionable fraud or an intentional
or knowing breach of duty.
means any claim or suit against a plan member or the City
not covered by the program article.
means payments for claims beyond the purpose or limits of
the risk management fund. These may include, but are not limited to,
the following:
The payment of any plan claim involving damages that arise from
the exercise by the City of its power of eminent domain and lawful
powers of condemnation.
The payment of all or that portion of any plan claim that in
lieu of payment from the fund, can be paid from:
The proceeds of insurance carried by the City, including (but
not limited to) casualty or liability insurance, worker’s compensation
insurance, or property insurance;
The proceeds of any insurance carried under any health, accident,
or similar plan of benefits provided by the City; or
Any fund, reserves, or other source of payment available to
the City that has been designated or otherwise set aside for such
purpose.
The payment of a claim that is in excess of amounts available
in the fund for payment as prescribed in the program article.
Payments considered by the Claims Board as not in the scope
or boundary of the program article.
means moneys over and above those moneys needed to fund the
risk management fund as determined by an independent actuary.
means liability coverage for all premises and operations
of the City for which the City is legally obligated, including bodily
injury and property damage.
means an accident, an incident or series of repeated incidents,
that results in compensable injury to one or more persons.
means any injury arising out of false or wrongful arrest,
detention, or imprisonment or malicious prosecution; wrongful entry
or eviction or other invasion of the right of private occupancy or
right of privacy; publication or utterance of a libel or slander or
other disparaging or defamatory material; and bodily injury.
means any liability claim against a plan member arising out
of or relating to acts or omissions occurring in the ordinary course
and scope of a plan member’s duties, powers and functions for
the City.
means elected officials, appointed officials, employees and
certain volunteers when and while acting in the ordinary course and
scope of their duties, powers and functions.
means any insurance (other than the self-insurance provided by the fund) that is obtained by the City pursuant to section 41.100 of this article.
means this article and any amendments hereto.
means the liability insurance policies, if any, that the City has purchased from an insurance provider pursuant to Section 41.100 of this article.
means any of the following risks:
means any damage to or destruction of tangible property or
the loss of use of tangible property.
means liability for alleged professional misconduct or lack
of ordinary skill in the performance of public duties, including bodily
injury and property damage.
means claims associated with a covered act but which are
not covered under this program article because of one or more exclusions.
means a “corporate risk” for which the City may
be held liable under the Municipal Worker’s Compensation Law.
(Ordinance 4308, sec. 1, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/5/91; Ordinance 6895, sec. 1, adopted 2/21/17)
(A)
Whenever
the context requires: reference in the program article of the singular
number shall include the plural and vice versa; and words used in
the program article denoting gender shall be construed to include
the masculine, feminine, and neuter.
(B)
The
table of contents and the titles given to any article or section of
the program article are for convenience only and are not intended
to modify or affect the meaning of the program article.
(Ordinance 4308, sec. 1, adopted 2/21/89)
The City Council hereby establishes and orders created the “City
of Garland Self-Insurance and Risk Management Program,” which
shall consist of the policies, rights, and duties embodied in the
program article. The program shall be implemented and administered
as provided by the program article, and shall be subject at all times
to the superior authority of the City Council.
(Ordinance 4308, sec. 2, adopted 2/21/89)
(A)
The
“Risk Claims Board” is hereby created.
(B)
The
Claims Board shall be composed of the following five members:
(C)
The
City Secretary, or an Assistant City Secretary designated by the City
Secretary, shall serve as the secretary of the Claims Board.
(D)
The
Claims Board may select such officers as it determines appropriate
from among its members.
(Ordinance 4308, sec. 2, adopted 2/21/89; Ordinance 6895, sec. 2, adopted 2/21/17)
The Claims Board has the power and responsibility to administer the program on the City’s behalf in accordance with the program article, subject to the superior authority of the City Council. In the course of carrying out this responsibility, the Claims Board shall interpret and apply the provisions of the program article, applicable resolutions adopted by the City Council, and the provisions of the City Charter relating to the program article. The Claims Board may interpret and apply the program article to special circumstances as defined in section 41.70. The Claims Board may establish rules governing the conduct of its affairs and take such actions necessary to enable it to properly and effectively exercise the powers and perform the duties and functions delegated to it under the program article.
(Ordinance 4308, sec. 2, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/5/91; Ordinance 6895, sec. 3, adopted 2/21/17)
(A)
The
fund is an internal service fund of the City created originally by
Resolution 5879 for the purpose of self-insurance. The fund will provide
capital for the more comprehensive risk and insurance management program
to be used as provided by the program article.
(B)
Only
the City, has, or is granted or vested with, any right to any of the
money in the fund.
(C)
The
cash of the fund shall be maintained at the City’s depository
bank unless required to be maintained elsewhere by another City ordinance
or by agreement entered into by the City.
(Ordinance 4308, sec. 2, adopted 2/21/89)
(A)
The
systematic annual increase in the loss reserve balance of the risk
management fund shall be provided for, as authorized by the City Council,
through transfers from the operating reserves of the general fund
and the utility fund, by moneys in amounts equal to the amount required.
Additionally, the loss reserve balance of the risk management fund
will be increased so that the year ending balance will be equal to
total of the reported and incurred losses as determined through an
annual review to be performed by a qualified consultant service or
independent actuary;
(B)
The
fund can also be provided for by contributions made to it from time
to time, upon the order of the City Council, from budgeted, appropriated,
and currently available City money; or
(C)
Derived
from time to time by the City pursuant to agreement entered into with
other third-person sources of funding.
(Ordinance 4308, sec. 2, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/5/91)
It is the policy of the City, subject to budgetary and general
economic conditions, to self-insure against combined risks through
the fund and to provide such self-insurance by depositing money into
the fund in amounts sufficient, under actuarial determination, to
provide for the defined self-insurance coverage prescribed by the
program article. It is further the policy of the City, under the appropriate
conditions, to obtain program insurance as provided by the program
article.
(Ordinance 4308, sec. 2, adopted 2/21/89)
The City, by virtue of establishing and maintaining the program,
is not admitting liability for any claim. The City reserves the right
to assert any defense to the payment or collection of any claim that
is lawfully available, and nothing contained in this article shall
be deemed or construed as a limitation or waiver of any defense whatsoever.
(Ordinance 4308, sec. 2, adopted 2/21/89)
This program article shall serve to consolidate and supersede
Resolution 4037 and Resolution 5827 by providing indemnity for plan
members, assumed risks, and possible claims against a plan member,
arising out of the plan member’s active or alleged error, omission,
negligence, or breach of duty, intentional or negligent, by the plan
member in the course and scope of the plan member’s employment
with the City, or for any matter claimed against the plan member solely
as a result of the plan member’s service as a City official,
employee, or volunteer.
(Ordinance 4308, sec. 3, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/5/91)
(A)
The
City shall defend any suit, except an excluded action, against a plan
member that results from a covered act even if the suit is groundless
or fraudulent
(B)
The
City may investigate, designate legal counsel, negotiate, or settle
any claim or suit against a plan member that results from a covered
act, as the City determines necessary or appropriate without the consent
of such plan member.
(Ordinance 4308, sec. 3, adopted 2/21/89)
(A)
Subject to subsections (B) and (C) of this section, the City shall defend and indemnify a plan member from a Plan Claim, but only if either:
(1)
The Plan Claim would be covered by the City’s applicable Program Liability Coverage but for the self-insured retention. In other words, the City’s agreement to cover any Plan Claim under this Section 41.81(A)(1) is co-extensive with and no greater than the coverage afforded under the insuring agreement and exclusions of the City’s applicable Program Liability Coverage. Any Plan Claim that would be excluded per the terms of the City’s Program Liability Coverage is likewise excluded from coverage under this Section 41.81(A)(1); or
(2)
The
Claims Board determines that it is in the City’s best interests
to cover the Plan Claim (regardless of whether the Plan Claim would
be covered under the terms of the City’s applicable Program
Liability Coverage). In determining whether it is in the City’s
best interests to cover a Plan Claim under this discretionary provision,
the Claims Board may consider, among other factors, the following:
(B)
To be
entitled to any coverage by the City for any Plan Claim, the plan
member must:
(1)
Notify
the Risk and Insurance Manager, in writing, immediately and as soon
as practical of any pending legal proceedings begun against the plan
member;
(2)
Cooperate
fully with the Claims Board and any designated attorney in the investigation,
negotiation, defense or settlement of any claim or suit giving rise
to a Plan Claim and in enforcing any right of contribution or indemnity
against an individual or entity who or which may be liable to the
City because of the payment by the City of a Plan Claim;
(3)
Assist
fully in the conduct of any hearing or trial held in connection with
a Plan Claim, including (but not limited to) attending the hearing
or trial, securing and giving evidence, and obtaining the attendance
of witnesses;
(4)
Not,
except upon advice of the City Attorney or when questioned by a police
officer at the scene of an accident, give any oral or written statement
or enter into any stipulation or agreement concerning a claim or suit
resulting in a Plan Claim;
(5)
Not,
except at the plan member’s own expense, voluntarily make any
claim or suit resulting in a Plan Claim without the consent of the
Claims Board;
(6)
Deliver
to the Claims Board, promptly upon receipt, any demand, summons, notice,
or other process received by the plan member, in connection with any
claim or suit that may result in a Plan Claim;
(7)
Comply
with the claims administration procedures of the Claims Board;
(8)
Consent
to legal counsel designated by the Claims Board; and
(9)
Perform
the duties and comply with the requirements imposed on the plan member
by the program article.
|
The plan member’s strict adherence to each of the above
requirements is a condition precedent to coverage by the City. Failure
to comply with any of the above requirements will constitute grounds
for denial and/or immediate revocation of coverage by the City.
|
(C)
The following claims made against a plan member are excluded actions, unless the City determines to provide coverage under subsection (A)(2) above:
(1)
Any
claim brought against a plan member by the City;
(2)
Any
claim that would be excluded per the terms of the City’s applicable
Program Liability Coverage;
(3)
Any
claim for liability assumed by a plan member under a contract, unless
the contract is entered into at the request and with the approval
of the City;
(4)
Any
claim for damages in which the cause of action or any part of it arises
out of or is related to conduct, acts, or omissions of a plan member
which are not within the specific course and scope of the plan member’s
employment and official duties.
(Ordinance 4308, sec. 3, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/25/91; Ordinance 6895, sec. 4, adopted 2/21/17)
(A)
The
City Attorney shall provide legal representation for a plan member
in a claim or suit, except for an excluded action, in which the asserted
or alleged liability of the plan member results from a covered act.
(B)
If the City Attorney determines that there exists a conflict of interest for the City Attorney to represent a plan member [pursuant to subsection (A) of this section], the City shall pay the reasonable fee of a private attorney to represent the plan member. The private attorney shall be selected by the Claims Board.
(Ordinance 4308, sec. 3, adopted 2/21/89)
If payment of a plan claim or legal representation is provided
to a plan member under the plan, the City is subrogated to the plan
member’s rights of recovery against any individual or organization
to the extent of the City’s payment or liability for payment.
A plan member shall execute and deliver to the Claims Board such documents
as are necessary to secure this right of subrogation in the sole opinion
of the City Attorney. A plan member shall not do anything after a
plan claim is incurred to prejudice this right.
(Ordinance 4308, sec. 3, adopted 2/21/89)
(A)
If the
City denies coverage under the plan to a plan member, the plan member
may appeal to the Claims Board by filing a written notice of appeal
with the Claims Board within five (5) days from the date coverage
was denied.
(B)
If the
Claims Board, upon appeal, upholds the denial of coverage, the plan
member, within ten days from the date the Claims Board makes its determination,
may appeal that determination to a court of competent jurisdiction.
An appeal from the Claims Board shall be determined on the basis of
the substantial evidence rule.
(C)
If the
court rules in favor of the plan member, the City shall provide such
coverage to the plan member and shall reimburse the plan member for
the reasonable coverage determination expenses.
(Ordinance 4308, sec. 3, adopted 2/21/89; Ordinance 6895, secs. 5–6, adopted 2/21/17)
Nothing contained in the program article shall be construed
as creating a right or cause of action against the City or a plan
member or as giving a right to a third party to institute or maintain
a suit that would not otherwise exist under law as a legal claim against
the City or a plan member.
(Ordinance 4308, sec. 3, adopted 2/21/89)
The Claims Board is responsible for the administration of the
plan in accordance with its terms, subject to the superior authority
of the City Council. In the course of carrying out this responsibility,
the Claims Board shall interpret and apply the provisions of the program
article.
(Ordinance 4308, sec. 3, adopted 2/21/89)
(A)
Money
shall be withdrawn from the fund only for the following purposes:
(1)
To
reimburse the City for administrative expenses as determined by the
Claims Board;
(2)
To
pay any plan claim, that the City shall become legally obligated to
pay;
(3)
To
pay any fund surplus (as determined only by an independent actuary
or consultant service) to the City;
(4)
To
retire (by scheduled payment, prepayment, defeasance, or otherwise)
any obligation of the City incurred in connection with providing funding
for the fund.
(B)
No withdrawal
from the fund shall be made except in accordance with the program
article.
(C)
Money
shall not be withdrawn from the fund to make any excluded payment.
(Ordinance 4308, sec. 4, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/25/91)
(A)
Subject
to the regulations and limitations provided by the program article,
the determination of whether any money in the fund shall be withdrawn
shall be made at the discretion of the Claims Board.
(B)
An aggregate
amount equal to or exceeding $100,000 shall not be withdrawn from
the fund to pay the plan claims of any one claimant that arise from
the same occurrence unless the City Council approves a greater amount
for that purpose.
(Ordinance 4308, sec. 4, adopted 2/21/89)
Withdrawals from the fund shall be made, upon the order of the
Claims Board, by check or draft drawn on the fund.
(Ordinance 4308, sec. 4, adopted 2/21/89)
A fund surplus shall not be withdrawn from the fund more often
than once a year.
(Ordinance 4308, sec. 4, adopted 2/21/89)
(A)
The
aggregate amount of withdrawals from the fund to pay any one claim
shall not exceed the amounts prescribed in the Texas Tort Claims Act
as currently enacted or as subsequently amended.
(B)
The
aggregate amount of withdrawals in any one fiscal year to pay all
plan claims shall not exceed three million dollars ($3,000,000).
(Ordinance 4308, sec. 4, adopted 2/21/89; Ordinance 4476, sec. 1, adopted 2/25/91)
The Claims Board shall direct the investment of the moneys in
the fund according to the City’s investment policy in investments
that are eligible as lawful investments for other public funds of
the City.
(Ordinance 4308, sec. 4, adopted 2/21/89)
The Claims Board is responsible for the administration of claims.
(Ordinance 4308, sec. 5, adopted 2/21/89)
(A)
The
Claims Board may allow one or more claims adjusters to adjust or otherwise
administer claims for the City.
(B)
Each
person who is to serve as a claims adjuster shall be designated by
the Claims Board. A claims adjuster shall either be selected from
among the City’s administrative staff, or a professional claims
handling or management service shall be retained as a claims adjuster.
(C)
If a
professional claims handling or management service is retained as
a claims adjuster, such employment shall be on a nonexclusive basis,
and the contract under which such service is retained shall be made
terminable by the City upon the expiration of a reasonable term fixed
by the Claims Board.
(D)
Each
claims adjuster shall be directly responsible to the Risk and Insurance
Manager and shall follow all claims’ administration policies
and procedures established by the Claims Board.
(Ordinance 4308, sec. 5, adopted 2/21/89)
(A)
The
Claims Board shall direct the defense of the plan claims.
(B)
The
Claims Board, at its discretion, may retain attorneys, experts, and
investigators in connection with the defense of any plan claim.
(Ordinance 4308, sec. 5, adopted 2/21/89)
(A)
The
Claims Board, at its discretion, may settle plan claims, subject to
the limitations prescribed by this section and the program article.
(B)
The
plan claims of any one claimant that arise from the same occurrence
shall not be settled for an aggregate amount equal to or exceeding
$100,000 without the approval of the City Council.
(C)
The
Claims Board may authorize claims adjusters to settle, without the
advance approval of the Claims Board, the plan claims of any one claimant
that arise from the same occurrence for an aggregate amount of less
than $10,000. The City Attorney shall be kept apprised of all settlement
negotiations.
(D)
The
Risk and Insurance Manager may settle, without the advance approval
of the Claims Board, the plan claims of any one claimant that arise
from the same occurrence for an aggregate amount of less than $10,000.
The City Attorney shall be kept apprised of all settlement negotiations.
(Ordinance 4308, sec. 5, adopted 2/21/89)
Payment of any claim that the City is legally obligated to pay
that is not a plan claim or, if a plan claim, that is in excess of
the amount permitted under the program article, shall be paid by the
City from sources of payment other than the risk management fund.
(Ordinance 4308, sec. 5, adopted 2/21/89)
(A)
The
program shall include the services of a Risk and Insurance Manager.
(B)
The
Risk and Insurance Manager shall be either an individual selected
from among the City’s administrative staff or a professional
risk management service retained by the City as the Risk and Insurance
Manager. If a professional risk management service is retained by
the City as the Risk and Insurance Manager, the selection of the service
shall be made by the City Manager.
(C)
The
Risk and Insurance Manager shall perform the duties and functions
prescribed by the program article.
(Ordinance 4308, sec. 6, adopted 2/21/89)
The Risk and Insurance Manager shall engage in the following
activities:
(1)
Identify
and quantify (to the extent practicable) the risks that have the potential
to result in loss to the City or plan members resulting from claims.
(2)
Devise
and implement programs designed to reduce the City’s and the
plan members’ exposure to loss due to program risks, including
(but not limited to) risk assumption, risk reduction, risk retention,
and risk transfer (including the purchase of program insurance).
(3)
Develop
and maintain an information system, in coordination with any existing
systems of the City, for the efficient recording of program information.
(4)
Implement
and supervise the safety and other risk management policies and procedures
that are to be followed by the City.
(Ordinance 4308, sec. 6, adopted 2/21/89)
(A)
Program
insurance may be obtained under the following circumstances:
(1)
As excess coverage over that provided by the fund, as reinsurance
for the fund, or as first-dollar coverage in lieu of that provided
by the fund (which may result in converting coverage provided by the
fund into excess coverage), if, in each case, the insurance is obtainable
on a fiscally sound basis, giving consideration to the investment
opportunities for the fund and any shock loss exposure of the City
due to the program risks;
(2)
When services that are necessary to effectively administer the program
can be obtained only by purchase of commercial insurance;
(3)
When the City is required by contract or law to purchase commercial
insurance;
(4)
When a higher level of risk transfer proves both prudent and fiscally
sound, or
(5)
When exclusions under the program do not result in long-term economic
advantage to the City.
(B)
The
procurement of program insurance shall be coordinated by the Risk
and Insurance Manager, reviewed by the Claims Board, and approved
by the City Council.
(C)
Program
insurance shall be obtained from sources determined to be in the best
interest of the City. The insurance provider shall be in excellent
financial condition as determined by the Risk and Insurance Manager.
(Ordinance 4308, sec. 6, adopted 2/21/89)
To promote the efficient and effective administration of the
program, the various department heads and other employees having administrative
responsibilities for the City are encouraged and directed to cooperate
with the Risk and Insurance Manager.
(Ordinance 4308, sec. 6, adopted 2/21/89)
The Risk and Insurance Manager, at least annually, shall report
to the City Council on the status and experience of the program, including
the financial status of the fund.
(Ordinance 4308, sec. 7, adopted 2/21/89)
The City, by ordinance, may alter the program from time to time
without notice to any plan member or other person.
(Ordinance 4308, sec. 7, adopted 2/21/89)
The program shall become effective on November 1, 1988.
(Ordinance 4308, sec. 7, adopted 2/21/89)
The program article shall not operate to repeal or affect any
other ordinance of the City except to the extent that the provisions
thereof are inconsistent or in conflict with the program article,
in which event, the program article shall take precedence.
(Ordinance 4308, sec. 8, adopted 2/21/89)
If any part of the program article is held to be invalid for
any reason, such holding shall not affect the validity of the remaining
parts of the program article.
(Ordinance 4308, sec. 8, adopted 2/21/89)
The provisions contained and established by the program article
are hereby declared to be governmental and for the health, safety,
and welfare of the general public.
(Ordinance 4308, sec. 8, adopted 2/21/89)
